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Anti-sharia: It has a point

Matthew Schmitz's recent piece on anti-sharia laws betrays so many misconceptions that we might charitably have passed it over in silence. But it provides an opportunity to revisit some Muslim issues that we haven't talked about in a while and also to give, perhaps, a slightly unusual take (you'll have to wait until nearly the end to come to that) on anti-sharia bills like the one passed in Kansas.

The biggest problem with Schmitz's piece is that Schmitz obviously doesn't understand Muslims in America. At all. His entire shtick is that Muslims are our fellow religious believers with whom we must hang together if we are not to hang separately, that conservatives' whole thrust should be to "protect" Muslims and make common cause with them, and that, apparently, all that the Muslims in our midst want is religious freedom. Just like the rest of us.

Which is baloney, as has been demonstrated times without number. Muslims in Western society tend to be extremely demanding, extremely pushy, constantly insisting on extreme accommodations and attempting overtly to change their host society fairly radically. I discussed this at length in this post, though even there I couldn't fit everything in, and some instances have come up since then.

It is on the basis of his misconception of Islam in the West that Schmitz declares airily that anti-sharia laws are completely pointless. He even goes so far as to say that they stem from bigotry. In fact, he throws around the term "bigot" and its cognates fairly freely for someone who is allegedly conservative. Apparently on Schmitz's view the problem isn't just, specifically, anti-sharia laws. Anybody who thinks Islam and Muslims in large numbers in our midst present a special problem for Western societies is a bigot. Which about tells you how deep and well-informed his entire approach to the issue is.

I wanted to note, in particular, Schmitz's shallow approach to the New Jersey case in which a husband repeatedly committed spousal rape, which he justified on the grounds that "this is according to our religion." Initially a judge (whose name I haven't been able to find easily) refused the wife's request for a restraining order, arguing that the husband was not guilty of criminal intent since he believed he was permitted to rape his wife.

The court believes that he was operating under his belief that ..., as the husband, his desire to have sex when and whether he wanted to, was something that was consistent with his practices and it was something that was not prohibited.

The decision was overturned on appeal. My discussion of the case is here. (Search "sharia" on the page. Due to a hopefully temporary software glitch, the post is available only on this archives page, and comments are not available.)

Now here is how Schmitz dismisses the relevance of this case to anti-sharia laws:

In 2009, a New Jersey judge, in deference to his own reading of sharia, refused to grant a restraining order for a woman seeking protection from an abusive husband. The decision was overturned on appeal, not because the judge had misread sharia, but because he had misread American law, which trumps the terms of any private contract — whether it is made according to sharia, canon law, Halakhic law, or the whims of the two parties. The New Jersey Star-Ledger summed up how the New Jersey case showed the needlessness of anti-sharia measures: “In 2009, a Hudson County judge gave too much weight to the religious beliefs of a Moroccan man accused of sexually assaulting his wife. The decision was overturned on appeal, and now the convicted defendant, who lives in Bayonne, faces up to 20 years in state prison.” What we see here is a judicial error, not the vulnerability of American law to “creeping sharia.”

Ah, yes, a judicial error. How nice. A judicial error that just happened to be based on Islamic law regarding the requirement that wives be constantly sexually available to their husband. According to Schmitz, it simply doesn't matter that this "judicial error" was a result of a judge's attempt to be so culturally sensitive that he permitted spousal rape in deference to the husband's Islamic legal beliefs. Move along, folks. No sharia to see here.

Perhaps it is also relevant to point out that Italian judges committed a similar "judicial error" when they overturned the conviction of parents and a brother who severely beat the daughter of the family. They did it "for her own good," you see, not out of anger. And all that about tying her to a chair? See, she was threatening to commit suicide (because she was so miserable and afraid of her family), and that was why they tied her to a chair; a suicide prevention measure. Only thing is, that particular "judicial error" was committed at the level of the highest Italian court. So it wasn't overturned on appeal. Oops. I guess we'll just hope that type of "judicial error" that doesn't get overturned doesn't ever happen here in the U.S.

Among all the other things that Schmitz is unaware of, he seems unaware of the relevance of foreign cases to where this is all going--unaware of the Italian case, unaware of a very similar German case, unaware of the attempt to use "provocation" as a defense of honor killings in Canada, unaware of the fact that sharia councils in the UK clearly envisage the "marriage" of prepubescent girls. Schmitz doesn't even recognize that his entire view of Muslim presence in America should be changed by the very attempt to use such defenses, even if usually unsuccessful. Move along folks. That's there, this is here; only bigots think sharia could be a problem here.

But there's more even in America that Schmitz is unaware of. For example, he says nothing whatsoever about the repeated attempts by the City of Dearborn to stifle ordinary, peaceful, missionary conversations during the Arab Festival. If you just read all my posts on Dearborn you will find much about this. These egregious violations of the constitutional rights of Christians wishing to share their faith in Dearborn are obviously being done in deference to the Muslim idea (read, sharia) that proselytizing Muslims ought to be forbidden. This year, after a number of lawsuits (some still in process), the police at Dearborn are apparently behaving somewhat more reasonably. But watch this hot-off-the-press video in which a Muslim man makes it quite clear that he's just waiting for the day when sharia comes back to shut up those pesky Christians, who should go home and be Christians in private and not come and have peaceable conversations with Muslims. Y'know, that doesn't look like the kind of person with whom I want to make common cause for the sake of religious liberty. Not at all. Perhaps Schmitz should educate himself about such people and their influence in cities like Dearborn.

Nor does Schmitz seem to have heard about the American judge who thinks marching in a parade in a costume that insults Islam removes you from protections that would otherwise apply against (in this case, fairly minor) assault.

Now that we've established that Schmitz is information challenged about Islam in the West, what is the point of anti-sharia laws?

As I have said elsewhere, such legislation sends an important message--a message, to put it bluntly, that we are not the UK and that we are not going to defer to any system of "informal sharia courts." Nor is the statement that this is all unnecessary terribly interesting or relevant. There are plenty of times when existing law or precedent ought to address some issue but is not being interpreted to do so and can profitably be supplemented by a new law with a new legislative history to address the newer problem. We might call this the "this means you" aspect of law. A couple of examples: The Religious Freedom Restoration Act and the Michigan Civil Rights Initiative (which outlawed reverse-discrimination affirmative action). There is no reason why anti-sharia laws could not do the same: "Yes, we really mean that you can't interpret some foreign law so as to apply specially to a given case in the name of 'cultural sensitivity' and undermine the usual force and direction of law as it applies to that case."

This would have been yet one more reason, if such a reason were needed, for the judge in the New Jersey case to realize, "Oh, I better not even go there" on treating spousal rape by a Muslim differently from the way he would treat it for anyone else. I noted at the time that David Yerushalmi was a bit uncomfortable about the ponderousness of the appellate court in its argument that religious freedom precedents don't permit spousal rape. Yerushalmi apparently thought that a brisker, not to say brusquer, dismissal of such a ludicrous argument would have better communicated the fact that it is totally beyond the pale. My own charitable interpretation was that the appellate court was making a kind of dry legal joke by using argumentative overkill. But if Yerushalmi was right that there was something ominous in the lengths the appellate court had to go to in making this obvious point, a state anti-sharia law should make for a useful shortcut. In fact, I would say that it is at the appellate (state) level that anti-sharia bills will most come into their own--another string to the bow of lawyers who have reason to believe that their clients have been treated unjustly because of trial judge deference to Muslim beliefs.

But: If anti-sharia bills are to be most effective, more needs to be done. In particular, the energy and frustration reflected by their passage needs to be channeled into a larger understanding of the Islam problem in America. In other words, we need to fuel precisely the concerns that Schmitz and many others want to call "bigotry." And those concerns need to lead to a broader approach, of which anti-sharia bills can be only a part. As I said elsewhere,

Sharia is multifaceted and multidimensional. It's a much harder sell to talk about lots of Muslims not on-board with sharia. Functional sharia will as a matter of course result from the existence of large Muslim communities in the U.S. And judicial and police deference to sharia will, does, and can take the form of applying the law selectively, prosecutorial discretion in refusing to prosecute Muslims, designating crimes as accidents, designating non-crimes by uppity Christians as "disturbing the peace," refusing properly to police Muslim areas and protect Christians, and so on and so forth--all of which are virtually impossible to root out by any single or comprehensive legal approach.

[snip]

[I]t seems to me that only comprehensive anti-Muslim immigration reform can stem the tide of sharia, specifically. Jihad, too, but sharia even more, because you just really cannot prosecute someone for, say, voting for Police Chief Haddad in Dearborn! Nor can you prosecute the Florida police department for negligence in the case of the death of this girl, even if they really were negligent. You have to stop the development of powerful, influential, Muslim communities.

To my mind, then, the real danger (if we should call it that) of anti-sharia bills is not that they will foster negative ideas about large numbers of Muslims in America but that they won't. The effect could be like that of a vaccination: "I'm safe now. I've taken care of that." It would be completely incorrect to believe that we can continue to allow Muslim enclaves to form in America and then counter the negative consequences of doing so with creative new laws. Moreover, let's remember: If judges are determined to be lawless and to defer to Muslim sensibilities, they will find ways of doing so. The New Jersey judge should have faced impeachment for such an outrageous ruling, but I'd be astonished if any such thing happened. An anti-sharia law could have made things brisker at the appeals level and is a good first move, but the problem we face with sharia is a problem all too much like corruption--only an ideological rather than a monetary corruption. And as everyone knows, corruption is as hard to root out of a legal and enforcement system as dandelions in a yard. I really find it difficult to believe that Italy, for example, has no legal safeguards against the outrageous ruling in the case of Fatima R. (the girl whose parents and brother beat her). The safeguards just didn't work, because the system was corrupted.

Anti-sharia laws, then, have a point, but their best and most important point is as a wakeup call to a larger problem that can be dealt with and prevented from growing worse only by a type of "immigration reform" that almost no one is talking about.

Comments (25)

Anti-Sharia laws won't do much to address the problems with the judiciary. The judiciary has, for the last several decades, tried to become almost a law unto itself. Heck, most of our practical problems between the citizenry and legal system are whole cloth fabrications of the judiciary that have no legislative backing. That's why Newt Gingrich struck such a powerful chord with so many people when he said he would bring them to heel. Behind virtually every expansion of Sharia culture (it's culture for now) is a judge who will not do his or her job.

The larger cultural problem in places where Islam is expanding is that American society has become a soft matriarchy while Islamic society is radically patriarchal. I can't think of a single known incident in which a society that wasn't firmly patriarchal survived a cultural contest with one that was. Islamic men are not just more committed to their culture, but allowed by their culture to be more committed.

By abandoning the concept of Christian patriarchy in our laws and culture, we've laid a foundation that Islam can exploit if it ever gets the numbers in a region like Dearborn to call it part of Dar al Islam.

Again and again American courts have expressly been asked to acknowledge sharia law in divorce and custody cases. From my quick scan I wd. say that in most of the top 20 cases the courts have not done so, but in several they have recognized sharia law, and in at least one case (I'd have to look at it again to see how many) this has resulted in American courts' giving custody of children to a Muslim father per sharia law without due consideration of the best interests of the child. Which is pretty serious stuff, to put it mildly. And in a _large_ number of cases Muslims have requested such actions by the court in recognition of sharia law, even where a trial court or appellate court has refused to do so.

Ironically, Schmitz evidently says that this is the "only" evidence submitted by his opponents. Even if this were true, it's a huge document containing many different cases. Just how much evidence does Schmitz want?

Let's just say (cue extremely dry tone) that Schmitz doesn't seem to have a legal mind. Yerushalmi has answered him repeatedly. Schmitz in particular does not understand the "this means you" effect that I mentioned in the main post.

I would love to have the opportunity myself to interview Yerushalmi and ask him a couple of questions. For instance: To my mind the most outrageous aspect of some of these cases where sharia has actually been applied to custody orders is the failure to take into account the best interests of the child and the failure to admit that Muslim law has an entirely different set of priorities. However, that doesn't seem like per se a constitutional issue for either of the parents involved. Giving kids to their father on the basis of a sharia custody order which is automatically going to give kids to the Muslim parent and/or to the father regardless of other considerations doesn't seem in itself to violate any constitutional rights of the mother. Therefore, how would a bill like the Kansas bill require a court not to grant comity to such a custody order? Here is the text of the Kansas bill:

Any court, arbitration, tribunal or administrative agency ruling or decision shall violate the public policy of this state and be void and unenforceable if the court, arbitration, tribunal or administrative agency bases its rulings or decisions in the matter at issue in whole or in part on any foreign law, legal code or system that would not grant the parties affected by the ruling or decision the same fundamental liberties, rights and privileges granted under the United States and Kansas constitutions, including, but not limited to, equal protection, due process, free exercise of religion, freedom of speech or press, and any right of privacy or marriage.

Perhaps the answer is that the children are "parties affected" by the ruling and that making a custody decision that, in effect, automatically hands them over to a Muslim parent just because he's Muslim fails to grant them some "right and privilege" under the Kansas constitution. But if so, which one? Does the Kansas state constitution address such issues at all?

Here in Texas our legal system long ago gave up jurisdiction of muslims and their legal problems with divorce and child cases to shariah law. It is frustrating that our leaders have so little knowledge of Islam and the dire consequenses of their actions. Texas will have a difficult time now in legislating out shariah law.

Perhaps the most acute irony of the anti-sharia movement is that it undermines our national security, in particular our ability to constructively engage peaceful Muslims and to take action against terrorists.

Schmitz is quite wrong here. The ability to engage peaceful Muslims depends on the existence and meaning of "peaceful Muslims." There are Muslims in this country who are here instead of Iran and Syria because they fled a restrictive, despotic application of sharia, they welcome the US rule of law and no more want to return to sharia than they want to return to Iran. Furthermore, there are Muslims here in this country who, growing up without sharia and without anything other than simple US law, are absolutely opposed to any foreign standards being used to determine how US courts make decisions, and who are positively enraged that their fellow Americans will cave in to proto-terrorists like those in Dearborn instead of upholding US standards.

Admittedly, the numbers of such Muslims may be relatively modest. But that means that the number of peaceful Muslims should be recognized as relatively modest. Muslims who want to re-make America into Syria writ large, and who are prepared to do it not by conversion and persuasion but by other means, do not need to be accommodated under the misnomer of "peaceful".

Yes, Yerushalmi notes this as well: Schmitz's "undermining national security" argument invokes yet again that strange, strange creature--the allegedly peaceful Muslim who is nonetheless so unstable that he is ready to be "radicalized" and turn to terrorism at the drop of a hat if he perceives that someone is "dissing" his religion in any way, shape, or form. Just how truly peaceful is such a person? And should we want him here? What's odd is that people like Schmitz say such things all the time and never realize how bizarre what they are saying really is. The U.S. is full of Christians who are surrounded all the time by people "dissing" their religion in ways great and small and somehow never think of joining terrorist groups as a result. Blasphemous anti-Christian works of art certainly shouldn't be publicly subsidized, but nobody ever said or thought that they were a national security issue!

Perhaps the most acute irony of the anti-sharia movement is that it undermines our national security, in particular our ability to constructively engage peaceful Muslims and to take action against terrorists.

Obviously this means that he is only concerned about the conservative Muslims who commit violent terrorism. Their ideological cohorts and sympathizers among the more moderate Muslims are no threat in his opinion.

If they're no threat, why would an anti-sharia law undermine our ability to engage with them constructively, and how would this undermine national security? It seems like they have to be at least a potential threat in some sense of "threat," or none of this would make any sense. He has to be envisaging their doing something, or being more likely to do something, that would be a national security problem, if we pass an anti-sharia law. Of course, that still doesn't make any sense, because in that case they aren't really very "peaceful." Perhaps all that he is envisaging their doing is giving money to terrorists or covering up for their more actively violent brethren, and doing so because we have hurt their poor little feelings by passing an anti-sharia law. Even so, I'd say that's not being all that peaceful. I wouldn't call a Catholic "peaceful" if he objected to what he perceived as American anti-Catholicism by starting to give money to and/or cover up for the activities of a violent Catholic terrorist group in America. (Note: This is just an illustration. I'm not saying that there even are violent Catholic terrorist groups in America. I don't know of a single one, actually.)

Ms. McGrew,
Here is a what-if that I would like to see your response to; without condescencion if possible.
The confessional seal of the Catholic Church is inviolate. So, to take an extreme example ( which many of these anecdotal Muslim atrocities seem to be):

Lets say a Catholic priest hears a confession from a child molester. He is able to ascertain who the offender is, he may even know who the target of the molestation is. The priest may know of future intentions and intended acts by the molester. Knowing all this and perhaps more, the priest is absolutely prohibited from breaking the confessional seal and divulging anything that he has heard there.

It's easy to imagine U.S. legislative bodies passing laws which are contrary to the rights of the Catholic Church as far as this is concerned. Indeed, we have already witnessed this starting to occur in Ireland.

So far in the United States, the courts seems willing to respect the seal of the Catholic confessional, but I promise you; it's only a matter of time before laws are passed that conflict with this.

Most non-Catholics can't imagine how the Church can protect a known child molestor even if the knowledge of such is acquired in the confessional. In general, they wouldn't side with the Catholic Church on this.

Do you see any similarities between this scenario and observation of Sharia type practices (especially where they do not conflict with U.S. law).
I know that this blog is populated by some Catholics. Perhaps they could respond also.

Do you see any similarities between this scenario and observation of Sharia type practices (especially where they do not conflict with U.S. law).

No, actually, I don't. Let's please remember that mandatory reporter laws do not already apply to the population generally. For example, even outside of the seal of confessional, if your friend Joe is a child molester and confides in you, unless you belong to a restricted and specific group of professions (usually the medical profession and, I believe, some teachers), you are not _legally_ obligated to report him. Whether you are morally obligated to or not, of course, is a different matter.

So attempts to extend the mandatory reporter laws to priests and to require them to violate the seal of confessional are not simply a neutral application of an existing law but rather a deliberate extension of such laws in a way that apparently targets priests.

There are also good prudential reasons for _not_ making mandatory reporter laws apply to all adults in the population generally. Mandatory reporter laws are so strong that they require reporting even if one merely suspects abuse. Extending these to the population generally would tend to encourage and even mandate spying on friends and neighbors, would limit the use of prudence in cases where one is unsure whether information is reliable, and would hasten the breakdown of trust in society. The fact that a priest has _additional_ reasons to resist such a mandate is merely icing on the cake.

In any event, talk about apples and oranges. The so-called "extreme" examples I have given are real examples of real mistreatment of real people by real Muslims, who expect these actions to enjoy the protection of law. And I have given more in my linked article in the "disinviting Islam" piece above. The attempted parallel here to the seal of confession is strained, to put it mildly. Catholics _should not_ attempt to parallel the seal of confessional to a husband's request for leniency in a case where he raped his wife while she cried. Or the _repeated_ attempts by Dearborn Muslims to have Christians arrested for peaceful religious conversations. Let's stop and think what sort of allies we are trying to make here!

By the way, I'm not sure why you say "especially where they do not conflict with U.S. law" since you are _explicitly_ asking about the passing of laws! That's rather odd in itself.

Moreover, um, the whole point of these so-called "extreme" examples is that sharia is being allowed to trump the usual application of U.S. law. If you don't realize that, you haven't been paying attention.

Apparently, it's not possible for you to respond without condescension.
Sorry to take up your time. I'm not a student in one of your college courses, and I doubt that you talk to people in person the way you abuse people on this blog.

You knock it off, Paul J Cella. I'm not playing the victim.
In my opinion, Ms. McGrew is very accomplished and intelligent, but she is also mean spirited and
condescending. I don't see anything specific in her bio or yours for that matter that
qualifies you to have the last word on Sharia law in this country.
It's your blog; do what you want, buy maybe you would be happier
if you limited your readership to an approved list.

I answered your substantive questions. I also pointed out that your comment about "not conflicting with U.S. law" made no sense whatsoever in the context of the conversation, a context which had been made exceedingly clear. Inattention is one possible explanation for such a confusion.

No one is saying you have to agree with Lydia. No one is claiming the last word on sharia. What's going on is a substantive argument. There's no sense in getting all bent out of shape because the argument can be a little rough and tumble at times.

Hmyer, your hypothetical example isn't so hypothetical. Baltimore, MD tried to do approximately what you are talking about, a year or two ago. Their attempt went down in flames. Not only did they not get quite the votes needed to pass (thought the result wasn't a shoe-in), athey also had numerous lawyers telling them it would not pass constitutional muster, AND they had the bishop of Baltimore tell them they might pass a law, but the priests wouldn't obey it.

Now, aside from the legal wrangle that was assured if they had gotten the votes, and aside from the political point Lydia made, there is the simple reality of such a law being useless anyway: if you make priests mandatory reporters, then sinners will stop telling priests about this sin. So, you end up neither catching any molestors, nor preventing any additional cases, nor protect any victims, nor enable spiritual leaders to have a shot at helping a person find therapy, correction, reform, and forgiveness.

It's the same thing with the mental health profession and the legal profession: society providing them with an explicit bye on the usual moral duty to report serious crimes is FOR the good of society overall.

This should help see why Lydia calls your case apples to oranges: for one, we consider the priest's protection from the normal (moral, not legal) obligation to report not merely a religious privilege, but a benefit to society. For the Muslim, there simply is no socially redeeming quality to his actions for which he is seeking protection from ordinary law.

In any case, while we have always had a robust protection of religious practice, that protection has never been considered to extend to a person causing direct physical harm to others. We recognize limits to the application of religious freedom, and these Muslim actions exceed those limits.

I think the example of the seal of confession is badly chosen because, in addition to the cogent arguments already put forward by Tony and Lydia, the confessor can only give absolution if there is contrition on the part of the penitent. My understanding is that, in the case of grave civil offenses, this includes a willingness to submit to the appropriate legal penalties. So a priest could not give absolution without the penitent agreeing to hand himself in.
So the context of confession is in fact very favorable to the application of the local civil law, whereas Sharia is, in many instances, in direct and explicit conflict with Western law.

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